In Powell v Dacorum BC (2019) EWCA Civ 29 and Forward v Aldwyck Housing Group Ltd (2019) EWHC 24 (QB), the question of the effect of the public sector equality duty under s. 149, Equality Act 2010, on possession proceedings where there had been drugs problems at the property was in issue. They were different cases in that, although the officers in Powell had sought evidence of protected characteristics which had only arisen at the last minute when a PSED assessment had been made, the PSED assessment in Forward was accepted as being inadequate. They were also different because Powell was case where the PSED was raised only at warrant suspension phase, whereas it was a central part of the defence to possession in Forward. Those differences apart, though, the outcome was the same: possession.
Forward is perhaps the simpler case. This was a case of cuckooing – where a drug dealer takes advantage of a vulnerable tenant – except that, in this case, there was some evidence that the tenant had invited the dealers into the property. The judge hearing the possession claim had also found that, although Mr Forward was physically disabled, he had provided no medical evidence of mental impairment, and there was no causal connection between the physical disability and the anti-social behaviour which had ensued from the drug dealing at the property. The judge’s approach was problematic for various reasons. However, on appeal, Cheema-Grubb J found that, even if the PSED assessment had been properly conducted, possession would still have been the outcome. This was because, “This appeal flounders on the inescapable fact that the appellant did not provide any support for his assertion that he had mental health difficulties to such degree as to enable the judge to conclude that the eviction should not be granted against him” (37). Although there was fresh evidence (which was not admitted on the appeal for Ladd v Marshall reasons – which had me wondering, but anyway), the outcome would have inevitably been the same; and, although there were errors in the Judge’s approach, “Looked at from the other end of these proceedings, it would be wholly unfair and disproportionate for me to allow this appeal because of the errors in Judge Wood’s approach when the entitlement of the respondent to seek eviction and the reasonableness of making the order sought, have already been clearly established on the facts of this case. For these reasons I conclude that there is no merit in the appeal and I dismiss it”.
Powell turns on an assumed difference between the summary of the principles concerning the PSED in Bracking v SSWP (2013) EWCA Civ 1345, given by McCombe LJ (who also heard this appeal) and the Court of Appeal judgment in Barnsley MBC v Norton (2011) EWCA Civ 834. The issue concerning the PSED only arose at a late stage because the housing officer, who had sought to obtain any relevant evidence prior to obtaining a closure order against the property due to drug use there, had only been provided with the relevant evidence (that Mr Powell suffered from psychotic illness and depressive episode, paranoid delusions and auditory hallucinations, as well as Hepatitis C; that he was on a three year treatment pathway and that homelessness would put him at risk of relapse) shortly before the full hearing of Mr Powell’s application to suspend the warrant. At that stage, the officer conducted the proportionality assessment. In relation to the case law, McCombe LJ said, at (44)
In my judgment, the previous decisions of the courts on the present subject of the application and working of the PSED, as on all subjects, have to be taken in their context. The impact of the PSED is universal in application to the functions of public authorities, but its application will differ from case to case, depending upon the function being exercised and the facts of the case. The cases to which we have been referred on this appeal have ranged across a wide field, from a Ministerial decision to close a national fund supporting independent living by disabled persons (Bracking) through to individual decisions in housing cases such as the present. One must be careful not to read the judgments (including the judgment in Bracking) as though they were statutes. The decision of a Minister on a matter of national policy will engage very different considerations from that of a local authority official considering whether or not to take any particular step in ongoing proceedings seeking to recover possession of a unit of social housing.
Given what was known to the officer at the time of making the application for the warrant, it would be “grotesque” to say that she had not complied with the obligation (applying Paragon HA v Asra (2018) EWCA Civ 1712), but, in any event, it was open to the authority to remedy any defect in compliance with the PSED at a later stage, which was entirely consistent with the approach taken in Norton:
Obviously, local authority landlords have to have proper regard to the duty under s.149 and I would hope that the headings collected together in paragraph 26 of my judgment in Bracking will assist authorities in meeting their responsibilities in these as in other cases. However, the decision to seek possession of a social housing unit in respect of which a court has already made a possession order is different in character from the decision under consideration in Bracking.
So, to the extent that such clarification was necessary, it has been provided.